R v P, NJ (No 2) - [2007] SASC 135

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v P, NJ (No 2)
[2007] SASC 135
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice White)
20 April 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PLEAS - SPECIAL PLEAS - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Appeal against a ruling on issues antecedent to trial and consideration of questions of law reserved - appellant previously found not guilty of attempted murder and guilty of wounding with intent to cause grievous bodily harm - following verdicts, victim died as a result of the injuries suffered - appellant charged with murder - whether the charge of murder must be withdrawn due to a plea of autrefois convict - whether the charge of murder must be withdrawn due to a plea of autrefois acquit - whether a stay should be granted on the grounds that the charge of murder is an abuse of process - whether the parties are precluded from questioning the verdicts in the previous trial by the tender of any evidence which, if accepted, would overturn or tend to overturn those verdicts - whether the parties are precluded from questioning any finding of fact by the Judge in the previous trial, including by the tender of any which, if accepted, would overturn or tend to overturn that finding on the basis that it is inconsistent with the verdicts - whether the accused is constrained in the manner by which he may contest the prosecution case - whether evidence establishing the fact of the conviction for wounding with intent to do grievous bodily harm is admissible to prove any of the elements of murder, proof of which was required for the conviction of wounding with intent to do grievous bodily harm, and if so, can the fact of that conviction be proved by way of a certificate issued pursuant to s 42 of the Evidence Act 1929 - Held: appeal dismissed - plea of autrefois convict unsuccessful - plea of autrefois acquit unsuccessful - the charge of murder does not constitute an abuse of process - evidence establishing the fact of the conviction for wounding with intent to do grievous bodily harm is not admissible to prove the elements of murder - the elements of murder must be proved by the tender of relevant probative and admissible evidence.
Criminal Law Consolidation Act 1935 (SA) ss 11, 18, 21, 270A, 330, 350(1A); Supreme Court Criminal Rules rule 8; Evidence Act 1929 (SA) 26, 42; Criminal Law Consolidation (Abolition of Year and Day Rule) Amendment Act 1991 (SA); Correctional Services Act 1982 (SA) s 67; Victims of Crimes Act 2001 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 7A, referred to.
R v [P, NJ] [2003] SASC 308; R v [P, NJ] [2006] SASC 309; Pearce v The Queen (1998) 194 CLR 610; Island Maritime v Filipowski (2006) 228 ALR 1; Rucioch v Police (2004) 88 SASR 326; R v Carroll (2002) 213 CLR 635; Blockburger v United States 284 US 299 (1932); United States v Dixon 509 US 688 (1993); Grady v Corbin 495 US 508 (1990); Wemyss v Hopkins (1875) LR 10 QB 378; DAT v Police (2003) 83 SASR 237; Australian Oil Refinery Ltd v Cooper (1989) 11 NSWLR 277; Reg v Z (H.L.(E.)) [2000] 2 AC 483; R v Degan [2001] 1 NZLR 280; House v The King [1936] 55 CLR 499; Walton v Gardiner (1993) 177 CLR 378; Jago v The District Court of New South Wales (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; Question of Law Reserved (No.3 of 1995) (1996) 66 SASR 450; DPP v B (1998) 194 CLR 566; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; Marsh v Darley [1914] 3 KB 1226; Bugg v Day (1949) 79 CLR 442; Broome v Chenoweth (1946) 73 CLR 583; Rogers v The Queen (1994) 181 CLR 251; Hunter v Chief Constable (1982) AC 529; R v Walker [1843] 3 M & Rob 446; R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219; R v Elrington 1 B & S 688; R v Miles [1890] 24 QBD 423; R v Worland [1964] VR 607; R v Weeding [1959] VR 298; R v Dodd (1991) 56 A Crim R 451; Saraswati v The Queen (1991) 172 CLR 1; R v King [1897] 1 QB 214; R v Barron [1914] 2 KB 570; R v Hogan [1960] 2 QB 513; Li Wan Quai v Christie [1906] 3 CLR 1125; R v Morris (1867) LR.1 WCR 90; R v Thomas [1950] 1 KB 26; Connelly v DPP (1964) AC 1254; R v Storey (1978) 140 CLR 364; Garrett v The Queen (1977) 139 CLR 437; R v Arp [1998] 3 SCR 339; R v Degnan [2001] 1 NZLR 280; R v Glennon (1992) 173 CLR 592; Batistatos v Roads and Traffic Authority of New South Wales (2006) 80 ALJR 1100, considered.

R v P, NJ (No 2)
[2007] SASC 135
Court of Criminal Appeal: Duggan, Gray and White JJ

DUGGAN J. In my view the appeal should be dismissed.
I agree with the answers proposed by Gray J to the questions reserved for the consideration of the court.
I agree with the reasons prepared by Gray J and the further reasons of White J.
GRAY J. Two matters are before this Court for determination - an appeal against a ruling on issues antecedent to trial and the consideration of questions of law reserved.
The Appeal Against the Ruling on Issues Antecedent to Trial
Introduction
On 24 September 2002, P, NJ, the appellant, on the Crown case, stabbed H in the left temple with a knife. As a consequence he was arrested. The Information alleged two offences- attempted murder,[1] and in the alternative, wounding with intent to cause grievous bodily harm.[2] The appellant was tried before a judge without a jury. On 14 August 2003, the appellant was found not guilty of attempted murder but guilty of wounding with intent to cause grievous bodily harm.[3]
[1] Contrary to sections 11 and 270A of the Criminal Law Consolidation Act 1935.
[2] Contrary to section 21 of the Criminal Law Consolidation Act 1935.
[3] R v [P, NJ] [2003] SASC 308.
Following these verdicts, on the prosecution case, H died as a result of the stabbing on 28 June 2004. On 4 January 2006, the appellant was charged with the murder of H.[4]
[4] Contrary to section 11 of the Criminal Law Consolidation Act 1935.
On 5 September 2006, the appellant made application[5] for an order that he not be prosecuted for murder. He advanced pleas of autrefois convict and autrefois acquit. In the alternative, he sought an order that the proceedings be stayed as an abuse of process.
[5] Pursuant to Rule 8 of the Supreme Court Criminal Rules.
On 29 September 2006, the application was heard, prior to trial, by the trial Judge. On 5 October 2006, the application was dismissed on all grounds.[6]
[6] R v [P, NJ] [2006] SASC 309.
Pursuant to a grant of leave, the appellant now seeks to review the dismissal of the application. It is said that the Judge erred in concluding that the pleas in bar advanced by the appellant were not made out, and alternatively erred in concluding that the prosecution of the appellant for murder did not amount to an abuse of the court’s process.
The pleas in bar
Pleas in bar are available in circumstances where the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.[7] In applying the test the inquiry is limited to the elements of the offences charged.[8] The order in which the charges are preferred, in point of time, does not affect the availability of the pleas in bar.[9]
[7]    Pearce v The Queen (1998) 194 CLR 610 at [18], [27]-[28], [63]; Island Maritime v Filipowski (2006) 228 ALR 1 at [40], [62]-[63]; Rucioch v Police (2004) 88 SASR 326 per Doyle CJ at [25]-[27].
[8]    Pearce v The Queen (1998) 194 CLR 610 at [24[-[28], [63]; Island Maritime v Filipowski (2006) 228 ALR 1 at [40], [63]; R v Carroll (2002) 213 CLR 635 at [91]; Blockburger v United States 284 US 299 (1932); United States v Dixon 509 US 688 (1993) at 713; Grady v Corbin 495 US 508 (1990).
[9]    Island Maritime v Filipowski (2006) 228 ALR 1 at [40], [88], [91], [95].
In determining whether the pleas in bar are made out an assessment of the evidence to be led at a second trial may be undertaken if it is necessary to do so in order to identify the elements of the offences charged.[10] Further, the test is not to be applied in ignorance of the principles and values that underpin it.[11]
[10] Pearce v The Queen (1998) 194 CLR 610 at [28].
[11] Island Maritime v Filipowski (2006) 228 ALR 1 at [49]-[52] (the principles and values underpinning the pleas in bar are identified at para [41] & [43]).
The learned judge reasoned:[12]
[12] R v [P, NJ] [2006] SASC 309 at [14]-[15], [29]-[34], [36]-[40], [43]-[47] (footnotes omitted).
In relation to autrefois convict, the second offence with which the accused is charged is murder, which is a more serious charge than the first offence, being a conviction for wounding with intent to cause grievous bodily harm. The accused was convicted by a judge sitting alone. The charge of murder could not have been laid at the time of the first offence, as at that time, the victim had not died. The issue concerns whether the accused should be put on trial and is not at this point concerned with punishment.
Regarding autrefois acquit, the second offence charged is again murder, which is a more serious charge than the earlier charge of attempted murder. Again, the charge of murder could not have been laid at the time of the first offence as the victim had not died.
…
Autrefois convict
In applying these principles to determine whether autrefois convict is available in relation to murder, the first consideration is whether the elements of the offence of murder are identical to the elements of the offence of wounding with intent to cause grievous bodily harm.
The elements of the offence of wounding with intent to cause grievous bodily harm are that there must be a wounding of a person, namely a breaking of the skin of the person; the wounding must be caused by an accused with the intent to cause grievous bodily harm to the person; finally, the intent must be to cause grievous bodily harm, and recklessness is not sufficient.
The elements of the offence of murder are that there must be a death of a person which was substantially caused by the accused. The accused in causing the death must have either an intent to kill, or intent to cause grievous bodily harm, or know that his action would probably cause death or grievous bodily harm to a person and be recklessly indifferent.
It is clear when setting out the elements of each of the offences that these elements are not identical. The most obvious difference is that the offence of wounding with intent to cause grievous bodily harm does not require that the accused substantially caused death of a person. It is also apparent that the mens rea in relation to both offences are not identical.
The second consideration is whether the elements of one offence are wholly included in the elements of the other. It can be seen from the elements of each of the offences set out above, that the offence of murder requires the death of a victim, which element is not required nor is it wholly included in the elements of the offence of wounding with intent to cause grievous bodily harm. Further, the intent required for murder is not wholly included in the intent required for wounding with intent to cause grievous bodily harm, although one basis upon which a person may be convicted of murder is if there is an intention to cause grievous bodily harm. That intention is common to both offences. Although there may be one common element to the first offence which may be included in the second offence, the other alternative ways of fulfilling the mens rea of murder (namely intent to kill or knowing that the act would probably cause is death or grievous bodily harm and being recklessly indifferent), are not included in the offence of wounding with intent to cause grievous bodily harm. Therefore, the elements of murder are not wholly included in the offence of wounding with intent to cause grievous bodily harm.
Further, the offence of wounding with intent to cause grievous bodily harm requires a wounding in the sense of a breaking of the skin. A wounding is not required for murder. Therefore the elements of wounding with intent to cause grievous bodily harm are not wholly included in the offence of murder.
…
In conclusion therefore, no autrefois convict applies in this case as the elements of the offences are not identical, nor are the elements of either offence wholly included in the elements of the other offence.
Autrefois acquit
The accused in this case was acquitted of attempted murder. The offence of attempted murder has the following elements: first, that the accused intended to kill the victim; second, that the accused attempted to execute that intention to kill by an act or acts which were immediately directed towards fulfilling that intention; and third, that the accused had no lawful excuse.
In applying the test for plea in bar, it is clear that the elements of the offence of attempted murder and murder are not identical. An obvious difference in the elements of the offence is that no death of the victim is required for an attempted murder, whereas this is an element of the offence of murder.
To consider then whether the elements of murder are wholly included in the offence of attempted murder, again, it is the absence of the accused having caused the death of the victim which indicates that the elements are not wholly included.
Likewise, the elements of attempted murder are not wholly included in the elements of murder. Whilst the element of intent to kill may potentially be common to both offences, it is an essential ingredient in attempted murder, but only one of the intentions that are required for murder. An offence of murder may proceed without proof of an intent to kill. Further, the second element of attempted murder – namely an act or acts done which are immediately directed towards fulfilling the intention to kill – is not an element of murder. Put another way, in the offence of murder, the act causing death is not required to have been performed in furtherance of an intention to kill. In the offence of murder, the act of the accused which causes the death requires, more simply, a temporal connection to the intent. Therefore the elements of attempted murder are not wholly included in the elements of murder, and no autrefois acquit would apply.
…
A conviction for murder may proceed on the basis of an intent to cause grievous bodily harm or reckless indifference, rather than an intent to kill. On that basis it could not be said that on a later conviction for murder the accused was necessarily guilty of the earlier charge.
This result arises because of the alternative nature of the elements of intent in murder. Where the first offence contains elements A, B and C, and the subsequent charge contains elements A, B, C and D, the first is wholly included in the second. But where the first charge contains elements A, B and C, and the second contains elements A, B and either C or D or E, then the first is not wholly included within the second. Therefore on that basis alone, the earlier acquittal for attempted murder is no bar to a subsequent charge of murder.
This approach looks to whether all of the elements are necessarily wholly included in the other and not whether all of the elements are possibly wholly included within the other. Such an approach is consistent with the nature of the doctrine. A plea in bar provides a legal bar to a prosecution. There is no discretion to allow it to continue. If the more expansive interpretation of wholly included, namely possibly wholly included, were adopted there would be a legal bar to certain prosecutions merely because it is possible that they might offend against the principle behind autrefois acquit. That would not be appropriate. It must not be forgotten that the Court retains a discretion to stay a prosecution for an abuse of process or for unfairness. In situations where infringement of the principles of autrefois acquit and autrefois convict possibly but not necessarily exist, the Court will carefully scrutinise the prosecution, including the nature of the case sought to be lead, to determine if a stay is required. But it would be inappropriate that there be a legal bar in such situations.
Even if this analysis is not correct, there is still the second element, namely that in the offence of murder, the act causing death is not required to have been performed in furtherance of an intention to kill as indicated above.
Further, as I indicate hereafter, in this case the possibility of a double jeopardy arising as identified above will not materialise. The prosecution has indicated that it will not open on or seek to prove that [the appellant] had an intention to kill the victim.
On the hearing of the appeal counsel for the appellant did not pursue the submission that the Judge was in error in rejecting the plea of autrefois convict.
With respect to the plea of autrefois acquit, counsel for the appellant submitted that if the Information charging murder was allowed to proceed, the conduct of the prosecution case would necessarily call and rely on evidence capable of giving rise to inferences as to the appellant’s state of mind. It was submitted that the availability of the inferences would have the inevitable consequence of calling into question the appellant’s acquittal of the crime of attempted murder. It was argued that on the trial for murder the availability of inferences as to the appellant’s state of mind exposed the appellant to double jeopardy. The trial, it was said, would necessarily involve the tender and use of evidence that would give rise to a challenge to the correctness of the previous acquittal.
Counsel for the appellant further submitted that any judicial direction to the jury designed to warn against the risk of drawing an inference inconsistent with the earlier verdict of acquittal could not realistically guard against the prejudice that would arise to the appellant. It was said that it was inevitable that there would be reference to the former trial and that there would be incurable confusion for the jury.
The effect of the submission of counsel for the appellant, with respect to the plea in bar of autrefois acquit, was that the plea could be maintained. However, it was accepted that in substance the same issues arose on the application for a stay on the ground of an abuse of process.
Counsel for the appellant submitted that this was an appropriate case for a permanent stay to prevent an abuse of process and in particular, oppression and unfairness to the appellant. It was said that the concerns that underpinned the doctrine of double jeopardy were present and should be given full force and effect by this Court. It was said that the Judge had failed to give proper weight to these matters.
As earlier observed, the Judge analysed the elements of the offences, the subject of the earlier trial of attempted murder and wounding with intent. The Judge then contrasted the elements of each of those crimes with the elements of the offence of murder. The Judge was correct to observe that the elements of the offence of murder differ from the elements of the earlier two charged offences. The later charge of murder arises out of the same incident, however there is the further circumstance that the injury inflicted allegedly caused death. Death had not occurred at the time of the earlier trial. This was not a case of a person being charged with an incorrect offence. It was not a case of the identical facts being used to support a new charge. This is a case where the conduct of the appellant on the prosecution case, led to the death of H. This was a further circumstance and an element absent from the earlier charged offences.

The Judge was correct in her determination that the test to be applied when considering the pleas in bar looked to whether the elements of one offence were necessarily wholly included in the other offence and not whether all of the elements were possibly wholly included in the other offence. The reason for allowing a limited right to refer to evidence in order to determine the elements of the offence charged is to ascertain the elements of the offence alleged and thereby ascertain with accuracy whether or not an accused in fact stands in jeopardy of being twice prosecuted for the same offence.[13]
[13] Pearce v The Queen (1998) 194 CLR 610 at [28]; Island Maritime (2006) 228 ALR 1 at [63].
The Judge’s approach was consistent with the inquiry being conducted on the basis of an examination of the offence alleged, as opposed to an academic consideration of the sameness of offences.[14] To conclude otherwise would be to apply the test in ignorance of the values and principles that underpin it. In the context of the present case, none of those values or principles are offended by the murder charge being allowed to proceed.
[14] Pearce v The Queen (1998) 194 CLR 610 at [23]; Wemyss v Hopkins (1875) LR 10 QB 378.
There is no general rule of preclusion derived from the notion of double jeopardy that permits a court to prohibit a prosecution other than as a result of a successful plea in bar. Any broader application of the notion of double jeopardy may be taken into account by the Judge in the course of determining an application for a stay on the ground that the prosecution of a particular offence amounts to an abuse of process.[15]
[15] Pearce v The Queen (1998) 194 CLR 610 at [66]; R v Carroll (2002) 213 CLR 635 at [84]; Island Maritime (2006) 228 ALR 1; DAT v Police (2003) 83 SASR 237 at [15]-[16], [37]; Rucioch v Police (2004) 88 SASR 326 at [17]-[20]; Australian Oil Refinery Ltd v Cooper (1989) 11 NSWLR 277; section 330 Criminal Law Consolidation Act, 1935.
In these circumstances, the Judge was correct to conclude that the plea of autrefois convict could not be advanced. The Judge was correct in her analysis and conclusion that the plea of autrefois acquit could not arise. However, there remains for consideration the issue of whether a stay for an abuse of process should have been ordered.
Stay for an abuse of process
It is convenient to first set out the observations of the members of the High Court and House of Lords addressing the Court’s discretionary powers concerning abuse of process.
In Carroll,[16] Gleeson CJ and Hayne J observed:[17]
Whether Rogers or Garrett should be understood as standing for some wider proposition need not be decided, although it may be accepted that there may be cases where a second prosecution is argued to be oppressive and an abuse of process, even though there is no direct inconsistency between the new charge and the earlier verdict. The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined. Nevertheless, where it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged. Seldom, if ever, will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which would be led at a second trial is new or persuasive.
...
Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z, R v Arp and R v Degnan are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.
[16] R v Carroll (2002) 213 CLR 635.
[17] R v Carroll (2002) 213 CLR 635 at [47], [50] (footnotes omitted).
Gaudron and Gummow JJ commented to the same effect:[18]
So-called "similar fact" evidence gives rise to difficulties which it is unnecessary here to consider. However, it may be noted that the House of Lords and the New Zealand Court of Appeal respectively have held that similar fact evidence is not rendered inadmissible (i) merely because it shows or tends to show that the defendant was guilty of an offence of which that person has been acquitted, or (ii) "by reason of the fact that a previous trial based on that evidence has resulted in an acquittal or a stay of proceedings".
[18] R v Carroll (2002) 213 CLR 635 at [94] (footnotes omitted).
The above observations referred with apparent approval to the judgment in Reg v Z (H.L.(E.)).[19] Of relevance to the present discussion are the remarks of Lord Hutton:[20]
My Lords, I consider, with great respect, that the distinction drawn between the prosecution adducing evidence on a second trial to seek to prove that the defendant was, in fact, guilty of an offence of which he had been earlier acquitted and the prosecution adducing evidence on a second trial to seek to prove that the defendant is guilty of the second offence charged in that trial even though the evidence may tend to show that he was, in fact, guilty of an earlier offence of which he had been acquitted is a difficult one to maintain. The reality is that when the Crown adduces evidence in a criminal trial for a second offence it does so to prove the guilt of the defendant in respect of that offence. In order to prove the guilt in respect of the second offence it may wish to call evidence which, in fact, shows or tends to show that the defendant was guilty of an earlier offence, but the evidence is adduced not for the purpose of showing that the defendant was guilty of the first offence but for the purpose of proving that the defendant is guilty of the second offence. Moreover I think that a distinction cannot realistically be drawn between evidence relating to a specific issue (such as intention or knowledge) and evidence which show that, in fact, the defendant was guilty of the offence of which he had been acquitted because in some trials the proof of a single disputed issue will establish the guilt of the defendant. I also think that it is difficult to draw a distinction between evidence which shows that the defendant was, in fact, guilty of an earlier offence of which he has been acquitted and evidence which tends to show that he was, in fact, guilty of that offence.
...
A consideration of the authorities and of the textbook writers and commentators leads me to the following conclusions. (1) The principle of double jeopardy operates to cause a criminal court in the exercise of its discretion, and subject to the qualification as to special circumstances stated by Lord Devlin in Connelly’s case, at p. 1360, to stop a prosecution where the defendant is being prosecuted on the same facts or substantially the same facts as gave rise to an earlier prosecution which resulted in his acquittal (or conviction), as occurred in Reg. v Riebold [1967] 1 W.L.R. 674 and the cases cited by Lord Pearce in Connelly’s case, at pp. 1362-1364, and see also Reg. v Beedie [1998] Q.B. 356. (2) Provided that a defendant is not placed in double jeopardy as described in (1) above evidence which is relevant on a subsequent prosecution is not inadmissible because it shows or tends to show that the defendant was, in fact, guilty of an offence of which he had earlier been acquitted. (3) It follows from (2) above that a distinction should not be drawn between evidence which shows guilt of an earlier offence of which the defendant had been acquitted and evidence which tends to show guilt of such an offence or which appears to relate to one distinct issue rather than to the issue of guilt of such an offence. Accordingly the judgments in G. (An Infant) v Coltart [1967] 1 Q.B. 432 should not be followed.
...
In the present case the defendant is not placed in double jeopardy because the facts giving rise to the present prosecution are different to the facts which gave rise to the earlier prosecutions. The evidence of the earlier complainants is accepted to be relevant and to come within the ambit of the similar facts rule and therefore I am of opinion that it is not inadmissible because it shows that the defendant was, in fact, guilty of the offences of rape of which he had earlier been acquitted.
[19] Reg v Z (H.L.(E.)) [2000] 2 AC 483 – see also R v Degan [2001] 1 NZLR 280 at [19]-[25].
[20] Reg v Z (H.L.(E.)) [2000] 2 AC 483 at 499, 505, 506.
Lord Hope in agreeing observed:[21]
The objection to the admissibility of this evidence is based on Lord MacDermott’s statements in Sambasivam v Public Prosecutor, Federation of Malaya [1950] A.C. 458, 479 that the effect of a verdict of acquittal pronounced by a competent court after a lawful trial is not restricted to the fact that the person acquitted cannot be tried again for the same offence. He said that it is binding and conclusive in all subsequent proceedings between the parties to the adjudication. But I agree with my noble and learned friend Lord Hutton that the observation which is contained in the second of these two statements is in need of qualification in order to confine its application to its proper context. The principle which underlies both statements is that of double jeopardy. It is obvious that this principle is infringed if the accused is put on trial again for the offence of which he has been acquitted. It is also infringed if any other steps are taken by the prosecutor which may result in the punishment of the accused on some other ground for the same offence. But it is not infringed if what the prosecutor seeks to do is to lead evidence which was led at the previous trial, not for the purpose of punishing the accused in any way for the offence of which he has been acquitted, but in order to prove that the defendant is guilty of a subsequent offence which was not before the court in the previous trial.
[emphasis added]
[21] Reg v Z (H.L.(E.)) [2000] 2 AC 483 at 487.
The Supreme Court of South Australia is vested with an inherent power to stay proceedings in the exercise of its discretion so as to ensure that its process is not abused.
To the extent that the appeal challenges the exercise of the judge’s discretion refusing the appellant’s application for a stay it is important to recall the oft-cited observations in House:[22]
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
These observations were referred to by Gaudron and Gummow JJ in Carroll, where it was said: [23]
The power to stay is said to be discretionary. In this context, the word "discretionary" indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration. If so, the appellate court may reach its own decision in substitution for that of the primary judge, where there are before it the materials for so doing.
[22] House v The King [1936] 55 CLR 499 at 504-505.
[23] R v Carroll (2002) 213 CLR 635 at [73] (footnotes omitted).
As earlier observed, counsel for the appellant advanced the same submissions when addressing autrefois acquit as on the question of abuse of process. It was said that the appellant would suffer prejudice that could not be adequately guarded against by directions to the jury. It was complained that the Judge failed to properly weigh these considerations in the exercise of her discretion. Counsel for the DPP contended that no error in the exercise of the Judge’s discretion had been demonstrated.
In determining whether or not proceedings should be stayed as an abuse of the court’s process the court is required to undertake a balancing exercise. As Mason CJ, Dean and Dawson JJ observed in Walton v Gardiner:[24]
[T]he question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of the charges or serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
[24] Walton v Gardiner (1993) 177 CLR 378 at 395-396; see also Jago v The District Court of New South Wales (1989) 168 CLR 23 per Mason CJ at 33; Williams v Spautz (1992) 174 CLR 509 per Mason CJ, Dawson, Toohey and McHugh JJ at 520. Question of Law Reserved (No.3 of 1995) (1996) 66 SASR 450 per Debelle J, with whom Mullighan and Nyland JJ agreed, at 460-1.
In the present case, the Judge undertook such an exercise:[25]
There is a further aspect to public interest to be considered. Public interest includes a number of factors. There is a public interest in the administration of justice, namely that persons should be charged with the offences which they have committed and be punished accordingly. There is also a public interest in the rights of victims of crime to have the perpetrators of crime charged with the offences committed against them. There is also a public interest in ensuring that an accused person is not treated unfairly or oppressed in the process of the administration of justice. These are all matters to be balanced and in many respects the factors previously considered for incontrovertible verdict and unfairness to the accused, are included and are required to be drawn together and considered.
...
I have given careful consideration to all of these factors, including those factors personal to [the appellant] such as his youth and his current eligibility for parole. However, I am not satisfied that those features should outweigh the other factors to prevent [the appellant] being charged with the offence of murder following the death of his victim, and after he has been found guilty beyond reasonable doubt of stabbing that victim in the head with the intention of causing him grievous bodily harm. For these reasons I therefore refuse the application for stay of proceedings.
[25] R v [P, NJ] [2006] SASC 309 at [63], [68].
In undertaking the balancing exercise the Judge had regard to the following considerations: whether or not the trial of the murder charge would controvert the verdicts returned upon the first trial; the impact of the murder charge upon the appellant; the delay in laying the murder charge, its consequence for the appellant and the public interest in matters being prosecuted expeditiously; the possibility that the murder charge, in the light of the previous trial and verdicts, may result in an outcome that undermines the administration of justice; the public interest in persons who have committed offences being charged and brought to justice for those offences; the interest of H’s family in having the person who has harmed them charged and prosecuted; and the public interest in ensuring that the appellant is not treated unfairly or oppressively by the administration of justice.
These were appropriate considerations. Together they form a clear case to refuse a stay. The Judge did not act upon a wrong principle, did not permit extraneous or irrelevant matters to intrude, did not mistake the facts and did not fail to take into account a material consideration. The conclusion at which the Judge arrived was within her discretion. No error has been demonstrated. The conclusion of the Judge was fully justified in the circumstances.
Conclusion
The appeal should be dismissed.
Consideration of Questions of Law Reserved
In DPP v B[26] the High Court had occasion to consider the appropriateness of answering questions reserved. At the time, section 350(1A) of the Criminal Law Consolidation Act 1935 (SA) provided:
Where a person is tried on information and acquitted, the court shall, on the application of the Attorney-General or the Director of Public Prosecutions, reserve any question of law arising at the trial for the consideration and determination of the Full Court.
The Court took the view that the questions reserved should not be answered as they did not arise at the trial. Section 350(1A) has been amended to make it plain that questions can be reserved at or before trial. The amendment to the section was in place at the time that the questions were reserved in the principal proceedings.
[26] DPP v B (1998) 194 CLR 566.
However, in DPP v B, the Court provided observations relevant to whether the Court should in the present case answer the questions reserved:[27]
The questions reserved in this case were cast in very general terms, apparently unrelated to any facts, not even the facts in the case stated. That the questions were so general is, itself, a strong indication that they did not arise at any trial. Whether a particular power should be exercised in a particular way may well arise at a trial and although that might require consideration of whether power of the kind in question does exist, the question which arises at trial will, at least ordinarily, not be that broad and general question – “does the power exist?” -- it will usually be whether the alleged power can be exercised in the circumstances arising at the trial. The failure to connect the questions with the facts stated in the case might be seen as some drafting defect that should not be permitted to impede the resolution of the questions. But the generality of the questions that were referred is not simply a defect in drafting. It is a symptom of a more deep-seated problem.
The difficulties in the case stated procedure, whether the case is stated in a criminal or civil matter or, if in a criminal matter, whether stated at the instance of the prosecution or defence, are well known. At least some of those difficulties stem from a failure to recognise that the jurisdiction is not conferred to permit courts to offer general advisory opinions on hypothetical questions. The questions reserved in this matter appear to invite such an opinion.
Authorities footnoted by the High Court to support the above observations included a number from the civil jurisdiction.
[27] DPP v B (1998) 194 CLR 566 at [11]-[12] (footnotes omitted).

In Bass v Permanent Trustee Co Ltd[28] the High Court had occasion to express concern about the problems associated with hypothetical questions. Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ observed:[29]
[28] Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334.
[29] Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [45]-[48] (footnotes omitted).
The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. In R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd, Kitto J said:
“[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons ... [T]he process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which ... entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.”
Similarly, Professor Borchard in his pioneering work, Declaratory Judgments stated:
“A judgment of a court is an affirmation, by the authorized societal agent of the state ... of the legal consequences attending a proved or admitted state of facts. It is a conclusive adjudication that a legal relation does or does not exist. The power to render judgments, the so-called `judicial power,' is the power to adjudicate upon contested or adverse legal rights or claims, to interpret the law, and to declare what the law is or has been. It is the final determination of the rights of the parties in an action which distinguishes the judgment from all other public procedural devices to give effect to legal rights.” (Footnotes omitted.)
Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude. In In re F (Mental Patient: Sterilisation), Lord Goff of Chieveley said that:
“a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, eg in default of defence or on admissions or by consent.”
By “not a real question”, his Lordship was identifying what he called the “hypothetical or academic”. The jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law and such a declaration will not be hypothetical in the relevant sense. Barwick CJ pointed this out in The Commonwealth v Sterling Nicholas Duty Free Pty Ltd. However, that is not the present case.
It is true that some have seen the use of the declaratory judgment as little more than the giving of an advisory opinion. However, one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. Thus, the authors of one recent text on declaratory judgments emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. They say:
“If ... the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion.”
It is against the background of these authorities that the appropriateness of answering the questions should be considered.
The facts identified by the trial Judge
Upon the questions being reserved, the following facts were identified by the Judge:
1.    On the 24th September, 2002, [P] (hereafter the accused) stabbed [H] once in the region of the left temple with a knife. The incident occurred on the footpath outside a house in Thevenard where both the accused and [H] had been drinking and socialising with others. As a consequence of being stabbed [H] sustained a brain injury resulting in him being hospitalised for 11 weeks. Thereafter he spent just over four months in the Royal Adelaide Hospital Brain Injury Rehabilitation Unit at Hampstead.
2. On the 26th September, 2002, the accused was arrested and charged with having attempted to murder [H], contrary to sections 11 and 270A of the Criminal Law Consolidation Act, 1935.
3. On the 21st February, 2003, having pleaded not guilty to the charge of attempted murder, the accused was committed to the March sessions of the Supreme Court of South Australia for trial. Thereafter the Director of Public Prosecutions laid an Information in the Supreme Court charging the accused with attempted murder, contrary to sections 11 and 270A of the Criminal Law Consolidation Act, 1935, and, in the alternative, wounding with intent to cause grievous bodily harm, contrary to section 21 of the Criminal Law Consolidation Act, 1935 (SCCRIM 64-03).
4.    On the 3rd March, 2003, the accused’s trial was ordered remanet to the August 2003 sessions of the Supreme Court.
5. On the 5th August, 2003, the accused’s trial was called on for hearing before the Honourable Justice Mullighan. At that time an application was made by the accused for the trial to proceed without a jury pursuant to s7 of the Juries Act, 1927. That application was granted. The accused was then arraigned on the two counts contained in the Information and pleaded not guilty in each case. His trial then proceeded with evidence being called on the 5th, 6th, 7th, 8th, and 14th August, 2003. Evidence was given by the following people:
As to events leading up to the day of the stabbing -
·       [witness named]
As to the events at the house at Thevenard -
·        [witnesses named]
As to the injuries sustained by [H] and the treatment he received -
·        [witnesses named]
As to the police investigation -
·        [witnesses named]
The content of the declarations of the following people were agreed and read as the evidence they would give had they been called -
·        [witnesses named]
Evidence was agreed -
·        of the seizure of a pair of Reebok sport shoes from the accused at the time of his arrest. The right shoe belonging to the pair bore a blood like stain which tested positive to a presumptive test for blood. A DNA profile was obtained from that stain that matched a DNA profile obtained from a blood sample taken from [H].
·        the chance of finding a second male unrelated to [H] with the same DNA profile was rarer than 1 in 1 billion.
The accused gave evidence in his defence.
6.    On the 14th August, 2003, the accused was found not guilty of attempting to murder [H] but guilty of wounding [H] with intent to cause him grievous bodily harm (“the verdicts”).
7.    On the 29th August, 2003, the Honourable Justice Mullighan published his reasons for the verdicts he returned; see R v [P, NJ] [2003] SASC 308. That same day His Honour sentenced [P] to imprisonment for 7 years with a non-parole period of 4 years commencing on the 26th September, 2002.
8.    On the 28th June, 2004, [H] died. It is the prosecution case that his death was caused by the stab wound inflicted by the accused on the 24th September, 2002.
9. On the 4th January, 2006, an Information was laid in the Magistrates Court of South Australia charging the accused with the murder of [H], contrary to s11 of the Criminal Law Consolidation Act, 1935, that murder being the product of the same act relied upon by the prosecution in proof of the offences of attempted murder and wounding with intent to cause grievous bodily harm before the Honourable Justice Mullighan.
10. On the 17th March, 2006, having pleaded not guilty to the charge of murder, the accused was committed to the June sessions of the Supreme Court of South Australia for trial. Thereafter the Director of Public Prosecutions laid an Information in the Supreme Court charging the accused with murder, contrary to section 11 of the Criminal Law Consolidation Act, 1935 (SCCRIM 91-06).
11.    On the 4th June, 2006, the accused was arraigned in the Supreme Court on the charge of murder. He pleaded not guilty. The accused’s trial was ordered remanet to the October 2006 sessions of the Supreme Court.
12.    On the 5th September, 2006, the accused filed an application in the Supreme Court pursuant to Rule 8 of the Supreme Court Criminal Rules seeking an order that he not be prosecuted for murder by reason of being able to make out pleas of autrefois convict and autrefois acquit or, in the alternative, that the proceedings be stayed as an abuse of process.
13.    On the 29th September, 2006, the Rule 8 application was called on for argument before me. At that time the accused, with the consent of the Director of Public Prosecutions, withdrew the plea of not guilty that he had made on the 4th June, 2006. Thereafter I heard submissions in relation to the Rule 8 application.
14.    On the 5th October, 2006, I dismissed the Rule 8 application on all grounds. The following day I published my reasons; see R v [P, NJ] [2006] SASC 309.
15. On the 6th October, 2006, the Director of Public Prosecutions filed an application pursuant to s285A of the Criminal Law Consolidation Act, 1935, and Rule 9 of the Supreme Court Criminal Rules seeking orders relating to the admissibility of evidence in the accused’s trial for murder as to facts and issues adjudicated upon by the Honourable Justice Mullighan. The Rule 9 notice states that the following issues are raised for consideration:
1.Whether the limits of the principle of incontrovertibility extend to precluding an accused from putting in issue before a jury any matters which can be taken as concluded against him in favour of the prosecution by previous verdicts?
2.Whether the principle of incontrovertibility renders any evidence relevant to the proof of an element of the offence of murder where the accused’s prior conviction of the offence of wounding with intent to cause grievous bodily harm in respect of the same incident necessarily establishes that element or elements inadmissible other than by way of proof of the Court record?
3.To the extent that the elements of the offence of wounding with intent to cause grievous bodily harm are included in the offence of murder and the accused has been convicted of the former offence in circumstances where both offences relate to the same circumstances, can the prosecution in the trial for murder prove the overlapping elements by tendering a certificate pursuant to s42 of the Evidence Act 1929.
16. The prosecution has indicated that it will seek to tender in evidence a certificate issued pursuant to s42 of the Evidence Act, 1929, proving the Information relevant to the first trial, the trial of the charges in that Information, and the verdicts returned. The prosecution has indicated that it seeks to tender the certificate as evidence proving, or as an aid to proving, the elements of the offence of murder, to the extent that those elements are included in the offence of wounding with intent to cause grievous bodily harm.
17.    If the prosecution is unable to follow that course, then the prosecution has indicated that it intends to:
a.call evidence as to all elements of the offence of murder irrespective of whether those elements overlap with the elements of the offence of wounding with intent to cause grievous bodily harm which have already been proven and passed into judgment.
b.call all witnesses referred to in paragraph 5 above (with the exception of [BB] who has passed away), including those whose declarations were read and those who would be necessary to prove the agreed facts, to give the same evidence in relation to the same issues albeit in proof of the charge of murder.
c.answer any defences which may be raised by the accused such as his state of mind and intoxication or any other possible defences in the context of presenting its case.
18.    The accused contests both of the proposed prosecution approaches set out in paragraphs 16 and 17.
19. On the 9th October, 2006, the accused applied pursuant to s352(1)(c)(i) of the Criminal Law Consolidation Act, 1935, for leave to appeal against my judgment dismissing the Rule 8 application on all grounds. I granted the accused leave to appeal. In view of the fact that the issues subject of the accused’s Rule 8 application remain live, I determined that as a matter of procedural fairness it was inappropriate to arraign the accused on the charge of murder. In any event, I am advised by counsel for the accused that at this time the accused intends to plead not guilty to the charge of murder should his appeal in relation to the dismissed Rule 8 application be unsuccessful.
The facts as outlined by the Judge in part recount a number of matters of record. However, other matters are of a different character. The index to the witnesses at the earlier trial is no more than that. There is no condescension to any particularity about the evidence given by particular witness. A number of the asserted facts are no more than assertions.
The DPP application seeking orders regarding the admissibility of evidence does not define or confine the ambit of the facts. For example, the issue as to the limits of the principle of incontrovertibility[30] treats the facts as “any matters which can be taken as concluded against [the appellant] in favour of the prosecution by previous verdicts”. A difficulty with this formulation is that the ambit of the “matters” is not agreed or limited. Another is to discern what is meant by the phrase “taken as concluded”.
[30] See paragraph 15.1
It is against this background that the questions of law that have been reserved should be considered. Those questions of law are:
1.Are the prosecution and/or the defence precluded from questioning or calling into question the verdicts in the trial before the Honourable Justice Mullighan, including by the tender of any evidence which, if accepted, would overturn or tend to overturn those verdicts?
2.Are the prosecution and/or the defence precluded from questioning or calling into question any finding of fact by the Honourable Justice Mullighan, including by the tender of any evidence which, if accepted, would overturn or tend to overturn that finding on the basis that it is inconsistent with the verdicts?
3.Further, is the accused constrained in the manner by which he may contest the prosecution case, for the reasons given in (1) and (2).
4.At the trial of the accused for the offence of murder, is evidence establishing the fact of the conviction for wounding with intent to do grievous bodily harm admissible to prove any of the elements of murder, proof of which was required for the conviction for wounding with intent to do grievous bodily harm?
5.If the answer to (4) is yes, can the fact of that conviction be proved by way of a certificate issued pursuant to s42 of the Evidence Act 1929?
Consideration of the Questions
It is convenient to first address the reach of section 42 of the Evidence Act 1929 (SA). That section provides:
Proof of conviction or acquittal of an indictable offence
(1)The information, trial, and conviction, or acquittal of any person for an indictable offence may be proved by a certificate purporting to be under the hand of the Registrar of the Supreme Court or the District Court or the associate or other officer having the custody of the records of the court where such conviction, or acquittal took place, or of the deputy of such associate or other officer.
(2)The certificate may set forth the substance and effect of the record omitting the formal parts thereof.
(3)A conviction for any offence committed in any other State or any Territory of the Commonwealth may be proved by a like certificate.
(4)No proof shall be required of the handwriting or official position of any person certifying in pursuance of this section.
(5)The mode of proof authorised by this section shall be in addition to and not to the exclusion of any other authorised mode of proof.
This section was designed to aid the proof, inter alia, of a conviction or an acquittal. In those respects the certificate, once tendered, does no more than prove the fact of the conviction or acquittal of a person for an indictable offence.
Counsel for the DPP provided to the Court a copy of the certificate that it had obtained pursuant to section 42 of the Evidence Act and which it proposed to tender at the trial. The certificate was provided to assist the Court in understanding the reach of the questions reserved that refer to a section 42 certificate. The certificate is in the following terms:
SOUTH AUSTRALIA – IN THE SUPREME COURT
CRIMINAL CAUSES JURISDICTION
THE QUEEN v. [P, NJ].
FILE NO.: SCCRM-03-64
I, Paul Michael RYAN, Deputy Registrar, Criminal of the Supreme Court of the State of South Australia, an officer having the custody of the criminal records of the said Supreme Court, do hereby certify, that at the August, 2003, Criminal Circuit Sessions of the said Supreme Court held at Port Augusta in the said State commencing on the 4th day of August, 2003, an information was preferred against one [P, NJ] for a certain offences, to wit,
COUNT 1: ATTEMPTED MURDER [Contrary to sections 11 and 270A of the Criminal Law Consolidation Act, 1935], particulars of the offence are that on the 24th day of September, 2002 at Thevenard, he attempted to murder [H].
COUNT 2: WOUNDING WITH INTENT TO DO GRIEVOUS BODILY HARM [Contrary to section 21 of the Criminal Law Consolidation Act, 1935], particulars of the offence are that on the 24th day of September, 2002 at Thevenard, he unlawfully and maliciously wounded [H] with intent to do him grievous bodily harm.
(Copy of Information attached hereto)
and the said [P, NJ] was found not guilty on the first count but guilty on the second count by judgment and verdicts of a judge sitting without a jury on the 14th day of August, 2003 and on the 29th day of August, 2003 he was sentenced on the second count to imprisonment 7 years with a non-parole period fixed at 4 years. Sentence and non-parole period to commence from the 26th day of September, 2002.
Criminal Injuries Compensation Act levies imposed by Statute of $120.00.
Dated this 5th day of October, 2006.
Section 42 of the Evidence Act is facilitative in its operation. Its intent is to allow proof of a conviction or acquittal (where such is otherwise per se admissible), rather than having to obtain the actual court record for tender pursuant to the rule in Marsh v Darley,[31] or taking evidence from a person actually present when verdict was given.
[31] Marsh v Darley [1914] 3 KB 1226.

Section 42 of the Evidence Act may be used in aid of proving a conviction, when a witness is cross-examined about a prior conviction pursuant to section 26[32] of the Act.[33] The section 42 certificate may also be used to prove a conviction or acquittal, where the fact of such conviction or acquittal (as distinct from the facts or elements that led to it) is a matter to be proved in and of itself. An example would arise in an action for malicious prosecution where it is an element of the cause of action to prove that the prosecution concluded favourably to the plaintiff. Another example is in a prosecution of an accessory at common law, where it is necessary to prove that the principal offender was convicted. A further example arises where a person guilty of murder is to be disentitled to the estate or intestacy of the victim. In such a case the fact of crime, rather than its elements, is relevant - a conviction is admissible in the cause.
[32] A witness may, subject to any other provisions of this Act, be questioned as to whether he has been convicted of any offence, and upon being so questioned, if he either denies or does not admit the fact, or refuses to answer, it shall be lawful for the cross-examining party to prove such conviction.
[33] See Bugg v Day (1949) 79 CLR 442 at 464-468 (Dixon J).
In each of these circumstances, it would equally be open to tender the record of the earlier verdict, or to call a person who witnessed the earlier verdict. Section 42 of the Evidence Act facilitates proof.
If on the appellant’s trial for murder the fact of his conviction or acquittal is relevant then that fact may be proved by the tender of the proposed certificate.
The certificate that has been prepared pursuant to section 42, on its terms, may prove the Information on which the appellant was arraigned at the first trial, the fact of the trial on the charges in that Information and of the verdicts returned. As earlier observed, if these matters are relevant at the trial for the charge of murder then the certificate can be used to prove those matters.
The DPP wishes to go further. The DPP proposes to tender the section 42 certificate as evidence proving, or as an aid to proving, the elements of the offence of murder to the extent that those elements are included in the offence of wounding with intent to cause grievous bodily harm. This proposal faces an immediate difficulty. Section 42 does not operate in aid of proof of those matters. The certificate says nothing as to the elements of the offences of wounding with intent to cause grievous bodily harm or of attempted murder. It says nothing which could be taken as being in aid of proof of the elements of the offence of murder. The prosecution seeks to extend the operation of section 42 beyond a facilitative operation. This attempt should be rejected.
It is for the DPP at the trial of the appellant for murder to present the evidence that it asserts makes out each of the elements of the offence of murder beyond a reasonable doubt. It may be expected that it would do so by the tender of evidence in the usual way. At the conclusion of the trial, it will be open to the prosecution to submit in its final address to the jury that each of the elements of the offence of murder have been established beyond a reasonable doubt. Counsel for the DPP informed this Court that the relevant intent that would be relied on was the intention to cause grievous bodily harm. The DPP does not intend to rely on an intent to kill.
It is possible that circumstances, in the course of the appellant’s trial on the charge of murder, may arise where the earlier acquittal of attempted murder could be said to be undermined. If such a circumstance were to arise then the trial Judge’s discretion to exclude the evidence or submission in question said to be having that effect would be enlivened. However that is an issue or question that can only be determined in a particular factual circumstance arising in the course of the trial.
The questions reserved do not seek to bind either the prosecution or the defence to any particular fact or version of fact. In this circumstance the balance of the questions are hypothetical. For this reason each of the remaining questions reserved should not be answered. Their determination should await an objection being taken at trial in a particular factual circumstance. In that event, the Judge will need to rule as to whether the evidence or submission can be advanced having regard to the discussion in Carroll[34] and Reg v Z[35] referred to earlier in these reasons.
[34] R v Carroll (2002) 213 CLR 635.
[35] Reg v Z (H.L.(E.)) [2000] 2 AC 483.
The appellant faces trial for the crime of murder. The DPP should seek to prove each of the elements of the alleged offence by the tender of relevant probative and admissible evidence.
Conclusion
The questions should be answered as follows:

Questions Answers

1. Are the prosecution and/or the defence precluded from questioning or calling into question the verdicts in the trial before the Honourable Justice Mullighan, including by the tender of any evidence which, if accepted, would overturn or tend to overturn those verdicts? Not appropriate to answer.

2. Are the prosecution and/or the defence precluded from questioning or calling into question any finding of fact by the Honourable Justice Mullighan, including by the tender of any evidence which, if accepted, would overturn or tend to overturn that finding on the basis that it is inconsistent with the verdicts? Not appropriate to answer.

3. Further, is the accused constrained in the manner by which he may contest the prosecution case, for the reasons given in (1) and (2). Not appropriate to answer.

4. At the trial of the accused for the offence of murder, is evidence establishing the fact of the conviction for wounding with intent to do grievous bodily harm admissible to prove any of the elements of murder, proof of which was required for the conviction for wounding with intent to do grievous bodily harm? No.

5. If the answer to (4) is yes, can the fact of that conviction be proved by way of a certificate issued pursuant to s42 of the Evidence Act 1929? Does not arise having regard to answer 4.

WHITE J: The circumstances giving rise to this appeal and to the questions of law reserved are set out in the judgment of Gray J.
Those circumstances can be summarised briefly. On 4 September 2006, the appellant was charged with the murder of [H] on 24 September 2002 at Thevenard. On the prosecution case, [H] died on 28 June 2004.
In September 2002, the appellant was charged with two offences: the attempted murder of [H][36] and wounding with intent to do grievous bodily harm.[37] Following a trial by a judge sitting without a jury, on 14 August 2003 the appellant was acquitted of the offence of attempted murder, but convicted of the offence of wounding with intent to do grievous bodily harm. The judge was satisfied beyond reasonable doubt that the appellant had stabbed [H] with a knife, and that the knife blade had penetrated his skull to a depth of about 5 cm, causing an aneurism, paralysis of his right limbs, a loss of speech and other severe neurological consequences. The judge was also satisfied that the action of the appellant in stabbing [H] was a conscious, voluntary and deliberate act, and that it was unlawful. The judge acquitted the appellant of the offence of attempted murder because he was not satisfied beyond reasonable doubt that the appellant had, at the time of the stabbing, an actual intention to kill [H].
[36] See s 11 and s 270A of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”).
[37] Section 21 of the CLCA as in force at 24 September 2002.
The judge found that all of the elements of the offence of wounding with intent to do grievous bodily harm had been proved beyond reasonable doubt.
The appellant was sentenced to imprisonment for seven years with a non‑parole period of four years. Both the sentence of imprisonment and the non‑parole period were specified to commence on 26 September 2002, being the date upon which the appellant had been taken into custody. This meant that the appellant would have become eligible for parole on 26 September 2006. However, because of the subsequent charge of murder he has not been released.
In former times, the year and a day rule would have precluded the prosecution of the appellant for murder in this case. However, that rule was abolished in this State on 31 October 1991.[38]
[38] See s 18 of the Criminal Law Consolidation Act 1935, introduced by the Criminal Law Consolidation (Abolition of Year and Day Rule) Amendment Act 1991.
On 6 October 2006, a judge of this Court held that pleas in bar by virtue of the earlier charges and verdicts were not available to the appellant.[39] The judge also refused an application to stay the proceedings as an abuse of process.
[39] R v [P, NJ] [2006] SASC 309.
Unavailability of the Pleas in Bar
Although the appellant’s grounds of appeal included a complaint that the trial judge had erred in finding that the pleas of autrefois convict and autrefois acquit were not available, these complaints were not pursued on the appeal.
The decision of the High Court in Pearce v The Queen[40] established that a plea in bar is available only in those cases in which the elements of the offences charged are identical, or in which all the elements of one offence are wholly included in the other.[41] The order in which the offences are charged is immaterial. In whichever order they are charged, the elements of the two offences must be identical, or at least, the elements of one offence must include wholly the elements of the other.[42] The decision in Island Maritime Ltd v Filipowski[43] confirmed that the mere fact that the accused had been charged with a previous offence is not sufficient for a plea in bar. As the special plea in bar has its roots in the common law’s aversion to an accused being placed in jeopardy twice, it is essential for the availability of the plea that the appellant actually be (or have been) in jeopardy.[44] The previous charge must have been in circumstances in which a finding of guilt could validly have been made. That led Gummow and Hayne JJ to state the principle in the following way:
… the values encompassed by double jeopardy require that the plea of autrefois acquit, and the analogous principle applied in summary jurisdiction, be available whenever all of the elements of one offence (of which an accused stands, or stood, in jeopardy) are included in the other offence of which that accused stands, or stood, in jeopardy, and that the plea be available, and the analogous principle applied, no matter the order in which the offences are charged.[45] [Emphasis added]
Clearly enough, neither of the offences of attempted murder or wounding with intent to do grievous bodily harm included all the elements of murder. Nor does the offence of murder include all the elements of the former offences.
[40] [1998] HCA 57; (1998) 194 CLR 610.
[41] Ibid at [18], [24], 616 and 618 per McHugh, Hayne and Callinan JJ. See also Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 80 ALJR 1168 at [25]-[30] per Gleeson, Heydon and Crennan JJ; at [40] per Gummow and Hayne JJ, at [63] per Kirby J, at [95] per Callinan J and, in this Court, the decision of Doyle CJ in Rucioch v Police (2004) 88 SASR 326 at [26].
[42] Island Maritime Ltd v Filipowski [2006] HCA 30 at [40]; (2006) 80 ALJR 1168 at 1177 per Gummow and Hayne JJ.
[43] [2006] HCA 30; (2006) 80 ALJR 1168.
[44] See also Broome v Chenoweth (1946) 73 CLR 583.
[45] Island Maritime Ltd v Filipowski [2006] HCA 30 at [63]; (2006) 80 ALJR 1168 at 1182.
Abuse of Process
As already noted, the appellant’s submission was that the trial judge should have exercised the inherent jurisdiction of this Court to stay the prosecution of the charge of murder as an abuse of process. The appellant’s submission relied upon both his conviction of the offence of wounding with intent to do grievous bodily harm, and upon his acquittal of the charge of attempted murder. It was said that as the appellant has already been convicted and sentenced (and has served the non-parole period) for wounding [H] with intent to cause grievous bodily harm, the charge of murder is a double vexation, oppressive and unfair. As the appellant has been tried and acquitted of the attempted murder of [H], it was said that the prosecution of the charge of murder is a double jeopardy, a double vexation, oppressive and unfair, and would necessarily call into question the verdict of acquittal.
The appellant’s submissions emphasised the two aspects of abuse referred to by Mason CJ in Rogers v The Queen,[46] namely, the vexation, oppression and unfairness to the accused on the one hand, as well as the potential damage to the administration of justice on the other. It was said that the prosecution of the murder charge involved an attempt to litigate a new case which had already been disposed of by earlier litigation.[47] It was also said that the re-litigation in subsequent criminal proceedings of an issue already decided in the earlier criminal proceedings would be inconsistent with the principle that a judicial determination is binding, final and conclusive and would result in an erosion of public confidence in the administration of justice by allowing for conflicting decisions on the same issue.[48]
[46] (1994) 181 CLR 251.
[47] Cf Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ; Rogers v The Queen (1994) 181 CLR 251 at 256 per Mason CJ; Hunter v Chief Constable (1982) AC at 529.
[48] Cf Rogers v The Queen (1994) 181 CLR 251 at 256-7 per Mason CJ.
Abuse Arising from the Previous Conviction
The appellant’s submissions recognised that the scope of a plea in bar had been delimited by the decision in Pearce v R.[49] The proposition which was implicit in the appellant’s submissions was that in former times the appellant would, or may, have had available to him a plea in bar in his present circumstances, but now, in the light of the decisions in Pearce and in Island Maritime, did not. The appellant’s submission was that the considerations which had underpinned the availability of a plea in bar in former times in factual circumstances analogous to those in the present matter should now be recognised as indicating that the present prosecution for murder is an abuse of process.
[49] [1998] HCA 57; (1998) 194 CLR 610.
Mr Wells QC, who appeared with Mr Heuzenroeder for the appellant, referred the Court to a line of cases commencing with R v Walker.[50] This line of cases had been characterised by Wells J in R v O’Loughlin; ex parte Ralphs[51] as the “fourth category” of case in which a plea in bar was available in respect of a further charge following a conviction on an earlier charge for an offence connected with the same factual circumstances.[52] It involves those cases in which the prosecution seeks to charge an offence involving an element of aggravation, or an element of greater consequence, not present in the offence for which the defendant was first put on trial.
[50] [1843] 3 M & Rob 446.
[51] (1971) 1 SASR 219.
[52] (1971) 1 SASR 219 at 267.
It is convenient to consider this line of authority without, for the time being, any consideration of the so-called “murder exception” allowed for in the English authorities.
In R v Walker,[53] the accused had been found guilty by two magistrates of common assault. The conviction for common assault did not require proof of any felonious intention. Later the accused was charged with a felonious stabbing, arising from the same conduct which had been the subject of the common assault. The magistrates had jurisdiction in respect of the common assault but no jurisdiction in respect of a felony. Coltman J upheld the plea in bar, saying:
Suppose a party had been acquitted by a jury of an assault, and he was afterwards indicted for the felony which involved that assault; it is clear, if he did not make the assault, he could not be guilty of that which includes and depends upon the assault. There is no difference in such a case whether the party was acquitted or convicted. In either case the felonious intention would be negatived, and the party could not afterwards be indicted for a felony.[54]
It is evident that Coltman J relied on the fact that one assault was common to both counts.
[53] [1843] 3 M & Rob 446.
[54] Ibid at 457.
Next, Mr Wells QC referred to R v Elrington.[55] In that case, two defendants had been acquitted of the charge of common assault on one Finney. They were later charged with the offences of assault occasioning grievous bodily harm, assault occasioning actual bodily harm, and the assault and battery of Mr Finney. The prosecution was held to be precluded from proceeding with the later charges. Strictly speaking, this was not pursuant to a common law plea in bar. Instead the Court applied a statutory provision indicating that the certificate of outcome of the first trial had the effect that the accused were released from all further criminal proceedings “for the same cause”. However, in the course of his reasons, Cockburn CJ said:
… we must bear in mind the well established principle of our criminal law that a series of charges shall not be preferred, and, whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on the same facts in a more aggravated form.[56] [Emphasis added]
This passage from Elrington was cited by Gleeson CJ, Heydon and Crennan JJ in Island Maritime.[57] It is apparent that their Honours regarded Elrington as a case in which the elements of one offence, namely the assault, were wholly included in the offences of assault of an aggravated kind.
[55] 1 B & S 688.
[56] Ibid at 696.
[57] [2006] HCA 30 at [27]; (2006) 80 ALJR 1168 at 1175.
In R v Miles[58] the defendant had been convicted of a common assault by a court of summary jurisdiction, and then discharged without penalty upon entering into a bond to be of good behaviour. He was then charged on indictment and found guilty of four offences arising out of the same conduct. The most serious of the offences was that of unlawfully and maliciously wounding the victim. On a case stated, Hawkins J held that, with the exception of one charge, on a strict view a plea in bar was not available because the defendant had not previously been convicted of the offences in the form in which they were charged. But he held that the common law rule that a conviction for an offence by a court of competent jurisdiction should be a bar to all further proceedings for the same offence should be regarded as applying to any later proceedings for the same offence, whether with or without a circumstance of aggravation, and whether or not involving a more serious consequence to the defendant’s conduct.
The difficulties which have arisen in the application of the rule have most frequently occurred in cases where a conviction or acquittal for a simple offence has been set up as a bar to a subsequent charge against the same person in a more aggravated form, and the law, as deducible from the numerous cases to be found on the subject, seems to be this - that where a criminal charge has been adjudicated upon by a Court having jurisdiction to hear and determine it, that adjudication, whether it takes the form of an acquittal or conviction, is final as to the matter so adjudicated upon, and may be pleaded in bar to any subsequent prosecution for the same offence, whether with or without circumstances of aggravation, and whether such circumstances of aggravation consist of the offence having been committed with malicious or wicked intent, or by reason that the committal of the offence was followed by serious consequences. In this respect the criminal law is in unison with that which prevails in civil proceedings. Who ever heard of a new action prevailing after a verdict and judgment for damages for the same cause of action, simply on the ground that the damages were insufficient, or that the conduct of the defendant was, since the verdict and judgment, discovered to be more malicious than it was deemed to be at the trial? Judgment recovered in a former action was always a good plea in bar.[59] [Emphasis added]
[58] [1890] 24 QBD 423.
[59] Ibid at 431-2.

The rigour of the principle which was applied is apparent in the following further passage from the judgment of Hawkins J:
No doubt it seems a little startling that a conviction for a common assault, accompanied by a shilling fine or a dismissal of the complaint as too trifling for any punishment, should afford an answer to a subsequent indictment for that same assault, upon conclusive evidence that it was accompanied by an intent to murder; but reason and good sense point out that, even at the risk of occasional miscarriages of justice, when once a criminal charge has been adjudicated by a Court having jurisdiction, that adjudication ought to be final, and, after all, such miscarriages are very rare.[60]
[60] Ibid at 432-3.
The reference by Hawkins J in the passage first quoted to “the same offence” is, in my opinion, important. It indicates that Hawkins J was intending to confine the application of the rule to cases in which the later and more serious charge included the elements of the earlier charge. In that case, for example, the offence of assault occasioning grievous bodily harm included all the elements of the offence of common assault. Similarly, a charge of assault with the intention of inflicting grievous bodily harm would incorporate within it all the elements of common assault. Understood in this way, Miles does not include any category of case going beyond the description of the operation of a plea in bar as given by Gummow and Hayne JJ quoted earlier in these reasons.
In R v Worland[61] the defendant pleaded guilty to a charge of indecent assault in a court of summary jurisdiction. He was later charged with the offences of attempted rape and assault with intent to rape, both charges arising out of the same acts which had given rise to the conviction for indecent assault. Relying, amongst other things, on the decisions in Walker, Elrington and Miles, Monahan J held that a plea in bar should succeed in relation to the charge of assault with intent to rape, but should be dismissed in relation to the charge of attempted rape. The charge of assault with intent to rape included wholly within it the offence of indecent assault. Each was an offence involving an assault. The aggravating feature of the assault with intent to rape was the intent, held contemporaneously with the act comprising the assault, to rape the victim.
The mere intent to commit the crime of rape, so long as it merely resides in the mind of a person is no crime, known to the law, although it may well be sinful. The all-important element in that charge is the assault. The intent accompanying the assault does no more than aggravate it as an assault. It does not have the effect of changing the offence from one of assault.[62]
[61] [1964] VR 607.
[62] Ibid at 609.
Monahan J did not use the terminology of “elements” of the offences. Instead he applied a statement from the judgment of the Victorian Full Court in R v Weeding:[63]
[The accused] should not be put in peril of being twice punished for the same act or omission resulting in offences of the same character, but of greater or less degrees of aggravation.[64] [Emphasis added]
[63] [1959] VR 298 at 302.
[64] Ibid at 302.
It seems that when speaking of offences which were of the same character, both Monahan J and the Victorian Full Court in Weeding were intending to refer to cases in which the elements of one offence were wholly included in the elements of the later, albeit that the latter had an additional element of aggravation.
The reasons of Monahan J for rejecting the plea in bar in relation to the charge of attempted rape are also instructive in the present context. His Honour said:
Fundamentally the difference between assault with intent to rape and attempted rape depends on the degree to which the assault has proceeded and, in my view, when an assault has reached the point where it becomes an attempt to commit rape it ceases to be a merely aggravated form of assault and becomes an offence of a different character.[65]
The offence was of a different character because “the essence of the crime of rape is a felonious assault by penetration of the person of the prosecutrix”.[66] [Emphasis in the original]
[65] [1964] VR 607 at 610.
[66] Ibid at 611.
In the circumstances of Worland, the conduct of the accused comprising the assault (grabbing the victim as she walked in the street on the face and at the bust, and punching her head) was held not sufficiently proximate to the essential element of penetration so as to be able to conclude that its elements were wholly included within the elements of the offence of attempted rape. The conduct comprising the assault was of a different kind, and not an element of the offence of attempted rape.
Next, reference was made by Mr Wells QC to the decision of the New South Wales Court of Criminal Appeal in R v Dodd.[67] Two defendants were convicted of the summary offence of possessing heroin. It was held that the effect of those convictions was to give rise to a plea in bar in respect of a charge of supplying heroin which was based upon the same conduct. Having referred to the cases to which reference has already been made in these reasons, and to Saraswati v The Queen,[68] Gleeson CJ, who wrote the principal judgment, accepted that the possession of the heroin which was the basis of the first conviction was an element of the offence of supply. He accepted as well-recognised the proposition that when an offence is also an element of a more serious offence, a person cannot be convicted of both.[69]
[67] (1991) 56 A Crim R 451.
[68] (1991) 172 CLR 1 at 5 per Deane J, at 13 per Dawson J.
[69] (1991) 56 A Crim R 451 at 456.
Mr Wells QC also referred to R v King,[70] to R v Barron[71] and to R v Hogan,[72] but I do not think that a review of the facts of those cases is necessary for present purposes.
[70] [1897] 1 QB 214.
[71] [1914] 2 KB 570.
[72] [1960] 2 QB 513.
I referred earlier to the proposition implicit in the appellant’s submissions that in former times the appellant would, or may, have had available to him a plea in bar but cannot now, in the light of the decisions in Pearce and Island Maritime, avail himself of that plea. In my opinion, that proposition is of dubious validity. When it is understood that the cases in “the fourth category” were cases in which the later offences charged included all the elements of the offence of which the defendants had been found guilty, it cannot be concluded that the decisions in either Pearce or Island Maritime have restricted the application of the plea in bar in those circumstances.
An indication that this is so can be seen in the joint judgment of Gleeson CJ, Heydon and Crennan JJ in Island Maritime.[73] Their Honours referred to Elrington and to the judgment of Griffiths CJ in Li Wan Quai v Christie.[74] In relation to the consistency of those judgments with the decision in Pearce, the joint judgment then continued:
… when Griffiths CJ said in Li Wan Quai v Christie that "[t]he true test whether [a plea of autrefois acquit] is a sufficient bar in any particular case is, whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first", his reference to "evidence" must be understood as a reference to the facts constituting the elements of the offence. One thing is clear. Griffith CJ was referring to a case, like R v Elrington, where the offence the subject of the second charge was, to use the words of Cockburn CJ, a more aggravated form of the offence the subject of the first charge. In the passage from Li Wan Quai v Christie just quoted, which was cited in Pearce v The Queen, Griffith CJ referred to the 21st edition of Archbold's Criminal Pleading. His statement of the "true test" was taken directly from Archbold, which, in turn, referred to R v Elrington. It cannot be that Pearce v The Queen was contradicting the propositions stated by Cockburn CJ and Griffith CJ. For our part, however, we find it unnecessary to decide whether the principle is wider than that stated in the older authorities, and whether it also covers a case in which the first prosecution was for the more aggravated form of offence and the second is for a lesser form. Such a case would be the reverse of that referred to by Cockburn CJ and Griffith CJ. These questions do not arise for decision.[75] [Emphasis added]
[73] [2006] HCA 30 at [30]; (2006) 80 ALJR 1168 at 1175.
[74] [1906] 3 CLR 1125.
[75] [2006] HCA 30 at [30]; (2006) 80 ALJR 1168 at 1175.
In my opinion, the passage emphasised makes it apparent that, at the least, the plea in bar should continue to be available in the circumstances considered in Elrington. Furthermore, the absence of any suggestion of disapproval in either Pearce or Island Maritime of the decision of the New South Wales Court of Appeal in Dodd tends to confirm the continued availability of a plea in bar in cases in which the elements of the aggravated offence include wholly the elements of the “simple” offence.
If it be the case (as I think it to be) that neither Pearce nor Island Maritime had the effect of making unavailable a plea in bar in the circumstances arising in cases in “the fourth category”, it becomes unnecessary to consider whether the scope of the discretion to stay abuse of process should be enlarged to include those circumstances. There is no reason why, as the appellant put it, the fourth category should find “new life” within the rubric of abuse of process.
The Murder Exception
So far I have been considering the appellant’s position without regard to the so-called “murder exception”. Mr Wells QC acknowledged that the murder exception had the effect, in former times, that a plea in bar would not have been available in the appellant’s circumstances. That is because no plea in bar was available to an accused person previously found guilty of an assault (in an aggravated form or otherwise) in respect of a charge arising from the subsequent death of the victim from the injuries sustained in the assault.
The decision of the Court of Crown Cases Reserved in R v Morris[76] provides an early factual example. The defendant was tried and convicted of the assault of one Lymer. Later Lymer died and the defendant was charged with his manslaughter. It was held by majority that the prior conviction did not preclude the prosecution for manslaughter. Strictly speaking, the decision turned on the construction of the statutory provision which provided that the effect of the summary conviction was that the defendant was released from further proceedings “for the same cause” but the case has been accepted since as also stating the common law position. The murder charge in Morris was held not to be for “the same cause” because (per Martin B at 94) the cause adjudicated upon by the magistrates was an assault and (per Byles J at 95) the “cause” for the accusation, being the death of Lymer, was different.
[76] (1867) LR.1 WCR 90.
In R v Miles,[77] to which reference has already been made, Hawkins J said of the murder exception:
It could hardly be contended that a previous conviction for a common assault could be pleaded in bar to an indictment for murder, though to prove the murder it might be essential to prove the assault adjudicated upon. For the offence of murder consists in the felonious killing.[78] [Emphasis removed]
[77] [1890] 24 QBD 423.
[78] Ibid at 433.
A number of the authorities concerning the murder exception were reviewed by the Court of Appeal in R v Thomas.[79] That case confirmed that a defendant who had been convicted of wounding with intent to murder did not have available to him a plea in bar to a charge of murder following the death of the victim. The existence of the murder exception was also confirmed by the House of Lords in Connelly v DPP.[80]
[79] [1950] 1 KB 26.
[80] (1964) AC 1254. See in particular passages in the judgments of Lord Morris at 1305, Lord Hodson at 1332 and Lord Pearce at 1365.
Mr Wells QC submitted that none of the cases revealed a principled basis for the murder exception. It was submitted that this Court should regard the death cases as not constituting any exception at all. I do not consider it necessary to canvas these submissions in detail. Whatever might have been the basis for the murder exception in the English authorities, the present scope of the plea in bar in Australia is to be determined principally by reference to the decisions in Pearce and Island Maritime.
Further, if the murder exception has any continuing relevance, it may be in its recognition that the death of a person at the hands of another is such a serious matter as to require special consideration. That may be relevant to the consideration of whether the prosecution of the appellant for murder in the present case is an abuse of this Court’s process. The appellant’s submissions accepted that the murder exception may be relevant in this way.
Acquittal of Attempted Murder
The second strand of the appellant’s submissions with respect to abuse of process derived from his acquittal of the offence of attempted murder.
As the previous trial was by judge alone, the precise basis for the acquittal can be seen in the judge’s reasons. The judge said that he was not satisfied beyond reasonable doubt that the appellant had, at the time of the stabbing, an actual intention to kill [H]. The submission was that it was not open to the prosecution, on the charge of murder, to controvert that finding. The appellant invoked the principle of incontrovertibility. Reference was made to R v Storey;[81] Garrett v The Queen;[82] Rogers v The Queen;[83] and to R v Carroll.[84]
[81] (1978) 140 CLR 364.
[82] (1977) 139 CLR 437.
[83] (1994) 181 CLR 251.
[84] (2002) 213 CLR 635.
The acquittal of the offence of attempted murder would be controverted if the prosecution alleged on the trial of murder that the appellant had an intention to kill [H]. However, the prosecution accepted before the judge at first instance, and repeated on the appeal before this Court, that it would not allege in the prosecution for murder that the appellant had an intention to kill [H]. It accepted that it was precluded from doing so. Instead, it was said that the prosecution would allege that the intention of the appellant was to inflict grievous bodily harm, that being an alternative (and sufficient) mental state upon which a verdict may be founded.
That being so, the submission of the appellant on appeal was refined. The evidence upon which the prosecution would rely in order to prove an intention to inflict grievous bodily harm would, it was submitted, be capable of raising in the minds of the jury the inference that the appellant intended to kill [H]. The submission was that the very availability of that inference, even though not an inference that the prosecution would ask the jury to draw, was sufficient to constitute a breach of the rule against double jeopardy. It was said that that rule prevented both the tender and use of evidence which in any way challenged the correctness of a previous acquittal.
The appellant’s submission founded principally on a passage in the dissenting judgment of Barwick CJ in R v Storey:[85]
The correct principle relevant to the admissibility in a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal is, in my opinion, no more than this: that a verdict of acquittal shall not be challenged in a subsequent trial: the accused in a hearing of a subsequent charge must be given the full benefit of his acquittal on the earlier occasion. Evidence which was admissible to establish the earlier offence is, in my opinion, not inadmissible merely because it was tendered in the earlier proceedings: but it may not be used for the purpose of challenging, or diminishing the benefit to the accused of, the acquittal. Such evidence will be admissible, provided it is relevant to the subsequent charge or to a defence to it but must only be allowed to be used to support that charge or negative a defence. Where evidence which would tend to prove the earlier charge or some element of it is admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any wise to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal.
…
But the citizen must not be twice put in jeopardy, that is to say, as relevant to the present discussion, must not be placed at the risk of being thought guilty of an offence of which he has been acquitted, or of in any sense being treated as guilty. It is the use of the evidence given on the trial occasion to canvass the acquittal which, if allowed, would offend the rule against double jeopardy, giving that rule a generous application. The principle that the accused in the subsequent trial must be given the full benefit of the acquittal thus might be regarded as akin to but not a mere extrapolation of the principle of autrefois acquit, both being grounded upon the protection of the law against double jeopardy. But, to my mind, they are distinct principles.[86] [Emphasis added]
[85] (1978) 140 CLR 364.
[86] Ibid at 372-3. See also 396-7 per Mason J.
Four propositions of present relevance may be extracted from this passage:
1. A verdict of acquittal is not to be challenged in a subsequent trial.
2.In the hearing of subsequent charges, accused persons must be given the full benefit of their acquittal on an earlier charge.
3.This does not mean that evidence may not be led in the second trial which was led in the earlier trial, but it may only be led if it is relevant to, and probative of, the second charge (or a defence to it) and is led for that purpose. It cannot be used in any way to challenge or diminish the benefit to accused persons of their acquittal.
4.In order that accused persons may not be placed at the risk of being thought guilty of offences of which they have been acquitted, the jury must be warned that they must accept the fact of the earlier acquittal and may not reconsider it.
Statements to similar effect may also be seen in the other judgments in Storey.[87]
[87] See for example 397-8 per Mason J; 408-9 per Jacobs J; and 425 per Aickin J.
The appellant’s submissions emphasised the statement of Barwick CJ that citizens, in circumstances such as the present, must not be placed at the risk of being thought guilty of an offence of which they have been acquitted, or of in any sense, being treated as guilty. Hence the submission placed emphasis on what might possibly occur in this case in the minds of the jury. Even though the prosecution alleged an intention to inflict grievous bodily harm only, the jury might, it was said, conclude that the evidence indicated, beyond reasonable doubt, an intention by the accused to kill [H].
Other authority has tended to focus less on the theoretic possibility of detraction from the verdict of acquittal and more on the directness of the challenge in the second trial to that verdict. In other cases the focus has been on the extent to which the tender of the evidence in the later trial will involve re-litigation of an issue already decided adversely to the prosecution in the earlier trial.
In Garrett v The Queen[88] the appellant had been found guilty of rape. Evidence was led at his trial by the prosecution of the circumstances of a previous occasion of sexual intercourse between the appellant and the same complainant, which had resulted in a charge of rape of which the appellant had been acquitted. The appeal against the conviction was allowed. It was held that the evidence of the previous incident was inadmissible as it tended to call in question the verdict of acquittal. Barwick CJ (with whom Stephen, Mason and Jacobs JJ agreed) said:
… in my opinion the former acquittal could not be called in question by evidence led by the Crown in the subsequent trial. This conclusion does not depend on the purpose which the Crown sought to achieve by the admission of the evidence. It depends entirely on the tendency of the evidence itself.
The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict. That the applicant was not guilty of the former charge because acquitted of it is a matter which passed into judgment: It is res judicata. It is upon that principle and not upon any issue estoppel that the applicant succeeds. Here, if the Crown had sought to establish by evidence of the prosecutrix an indictment that the applicant had raped her on the occasion in November 1975, he could have pleaded autrefois acquit and thus precluded the reception of any such evidence. Here, of course, he was not indicted in respect of the intercourse in November 1975: and the purpose of the Crown in proffering the evidence was not to secure a finding that the intercourse had been without consent. But the direct tendency of the evidence of the prosecutrix was to establish rape on the former occasion. It inevitably challenged the verdict of acquittal. It was therefore, on basic principle, without resort to any issue estoppel which might be suggested, inadmissible.[89] [Emphasis added]
[88] (1977) 139 CLR 437.
[89] Ibid at 445.

The reference to a “direct tendency” and to an “inevitable challenge” in this passage is to be noted. Garrett is authority for the proposition that evidence which involves a direct challenge or which tends to call in to question directly a previous acquittal is not admissible. It does not otherwise address the circumstances in which evidence led at a previous trial may be admissible in a subsequent trial.
In Rogers v The Queen[90] the question was whether the prosecution could adduce evidence of a confession which had been found, in an earlier trial resulting in an acquittal, to have been made involuntarily. The majority (Mason CJ and Deane and Gaudron JJ) held that the principle of double jeopardy applied as much to interlocutory rulings in criminal proceedings resulting in a conviction or acquittal as it did to the verdict itself. Mason CJ said:
…The tendering of the confessions by the prosecution was vexatious, oppressive and unfair to the appellant in that it exposed him to re-litigation of the issue of the voluntariness of the confessional statements in the records of interview. This issue had already been conclusively decided in the appellant's favour because the confessions sought to be tendered - although relating to different crimes - were made at the same time and in exactly the same circumstances as the confessions that were the subject of the voir dire. Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue. These considerations necessarily prevail over any competing public interest in the securing of convictions against the appellant.[91]
It can be seen that in this passage Mason CJ emphasised, amongst other things, the inappropriateness of re-litigation of an issue already conclusively decided in the accused’s favour. Deane and Gaudron JJ said:
… the statements which the prosecution wishes to tender in the appellant’s forthcoming trial are, so far as voluntariness is concerned, exactly the same as those tendered in the 1989 proceedings. In the circumstances, tender of the records of interview constitutes a direct challenge to the 1989 determination which was a final determination, or became so, once verdicts were returned. The challenge is one which invites “the scandal of conflicting decisions”. And it jeopardises public confidence in the administration of justice: in a context where the onus of proof would be the same and where there is no claim of “fresh evidence” or fraud, a determination that the confessions were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989; equally, there would be a shadow over any conviction on the charges in the present indictment if confessional statements are admitted in evidence notwithstanding the earlier judicial determination that the circumstances in which they were made did not support a finding of voluntariness.[92] [Citations omitted] [Emphasis added]
The reference to the directness of the challenge and to “conflicting decisions” is to be noted.
[90] (1994) 181 CLR 251.
[91] Ibid at 256-7.
[92] Ibid at 280.
Finally, in R v Carroll[93] the accused was charged with perjury. The alleged perjury was the denial in his sworn evidence at his trial for murder that he had killed the victim. That trial resulted, after an appeal, in an acquittal. The prosecution sought to prove the falsity of the denials wholly by proof that the appellant had killed the victim. The prosecution case involved a direct challenge to the effect of the acquittal. It was held that the incontrovertibility of the earlier acquittal indicated that the charge of perjury was an abuse of process. Gleeson CJ and Hayne J referred to the “manifest inconsistency”[94] between the charge of perjury and the acquittal of murder. Gaudron and Gummow JJ relied on a principle of statutory interpretation but, in addition, said that the “subsequent perjury charge seeks to impeach the earlier acquittal”.[95] [Emphasis added] McHugh J referred to the “direct conflict”[96] between the acquittal and the charge of perjury.
[93] [2002] HCA 55; (2002) 213 CLR 635.
[94] Ibid at [42], 649.
[95] Ibid at [99].
[96] Ibid at [138].
In my opinion, the present case does not involve a tension between the acquittal of the charge of attempted murder on the one hand, and the prosecution of the charge of murder on the other, of the kind considered in Garrett, Rogers and Pearce. Furthermore, as the judgments in Pearce recognised, there may be cases in which, despite an earlier acquittal, evidence might be admitted which has the incidental effect of casting doubt upon, or even demonstrating the error of the earlier decision.[97] The cases involving similar fact evidence may be illustrations of cases of this kind.[98] It cannot be said that there is an absolute prohibition on the tender of evidence in a later trial which might tend to call into question the correctness of an earlier acquittal.
[97] R v Carroll (2002) 213 CLR 635 at 651 [50] per Gleeson CJ and Hayne J; at 663 [94] per Gaudron and Gummow JJ.
[98]See for example R v Z [2000] 2 AC 483; R v Arp [1998] 3 SCR 339; R v Degnan [2001] 1 NZLR 280.
It is true that without direction the jury in the present case might wonder why the prosecution does not allege that the appellant had an intention to kill [H], and may even think that the evidence indicates beyond reasonable doubt the existence of such an intention. But appropriate directions can be given. It is to be expected that the jury will be told both in the prosecution opening and final addresses that the Crown does not allege any intention to kill, and that that is matter which need not, and should not, be considered by them. It is also to be expected that the trial judge will give an appropriate direction to the jury. There is no reason to suppose that if such a direction is given, the jury will not comply with it.[99] The directions which are appropriate in this case will of course be dictated by the circumstances of the trial.
[99] See eg R v Glennon (1992) 173 CLR 592, particularly at 604 per Mason CJ and Toohey J.
Mr Wells QC submitted that any direction to the jury designed to warn it against drawing any inference inconsistent with the verdict of acquittal would meet two insurmountable difficulties. The first was that any reference to the first trial would involve inevitably a reference to the accused having been found guilty of the offence of wounding with intent to cause grievous bodily harm. The second was the incurable confusion which it is said that such a direction would cause the jury. I do not accept that submission. It is possible that the jury will not even hear of the first trial. Even if it does, it does not follow that they will learn of the conviction of the accused of the offence of wounding with intention to inflict grievous bodily harm. As I have already indicated, the directions to be given by the trial judge at the trial will depend upon the circumstances of the trial and the evidence which is led.
For present purposes, I do not consider that it can be concluded that the prosecution of the appellant for murder involves a challenge to the acquittal in the previous trial. I am satisfied that neither a direct conflict with that acquittal, nor an indirect challenge to the effect of the verdict, is involved.
The Third Strand
Mr Wells QC referred to some more general matters.
The accused has previously stood trial, in respect of the same conduct, for two offences. The maximum penalty for each of those offences was life imprisonment.[100] He now stands charged with an offence for which life imprisonment is the mandatory penalty.[101] The present prosecution means that he faces the strain of a second trial involving the prospect of the most serious criminal penalty being imposed.
[100] See s 270A and s 21 CLCA (as at 24 September 2002).
[101] See s 11 CLCA.
It was submitted, in addition, that the sentence imposed for the offence of wounding with intent to do grievous bodily harm had both punitive and rehabilitative aspects. It is to be expected that the appellant’s rehabilitation has progressed throughout the period of his incarceration. The appellant could reasonably have had an expectation of being released on parole on or shortly after 24 September 2006.[102] His expectations in that respect have been effectively frustrated by the laying of the charge of murder. The oppression involved is aggravated by the lapse of approximately 18 months between the death of [H] in June 2004 and the laying of the charge of murder in January 2006. The delay involved has been unexplained. The appellant was permitted, it was submitted, throughout this period to continue with the expectation of a release on parole in September 2006. He had continued his rehabilitation and commenced his preparations (at least mental preparation) for his release.
[102] Section 67, Correctional Services Act 1982 (SA).
I regard these matters as being significant. They have given me some pause. However, the detriments upon which the appellant relies are to be inferred from the general circumstances, and not from any evidence given by him. The appellant did not lead any evidence as to his circumstances or expectations. It is not known when he first learnt of the death of the deceased nor when he first learnt of the prospect that he might be charged with murder. There is no suggestion that a representation was ever made to the appellant that he would not be charged with murder in the event of the death of [H].
All of the matters to which I have referred were considered by the judge at first instance. As the judge pointed out, there are countervailing considerations. There is the public interest in those who are guilty of crimes being prosecuted to conviction for those crimes and in suffering a just punishment.[103] There is the interest of victims of crime and their relatives in having those responsible dealt with by the courts.[104] In relation to the interests of victims, the judge said:
In relation to the public interest as to the victims of crime, victims include not only those directly the subject of an offence such as assault, but also the family of that victim. There is now greater awareness and recognition being given to the rights and needs of victims of crime in the criminal justice system, as is reflected in various legislative provisions. Therefore victims are an aspect of public interest and have a similar interest in an offender being charged with the appropriate crime and being sentenced accordingly.[105]
I agree with those comments.
[103] Cf R v Carroll (2002) 213 CLR 635 at 644 [23] per Gleeson CJ and Hayne J.
[104] See for example the Victims of Crimes Act 2001 and the Criminal Law (Sentencing) Act 1988 (SA), s 7A.
[105] R v [P, NJ] [2006] SASC 309 at [66].
Conclusion on Abuse of Process
The appellant submitted that each of the three strands described above should be considered in combination. The abuse in the present case was to be found in the combined effect of each of the identified matters.
Considered in that way, I am not satisfied that the judge’s decision with respect to abuse of process has been shown to be wrong. In particular, I am not satisfied that reference to the so-called “fourth category” of cases indicates error by the judge or that an abuse exists in the present prosecution. I am not satisfied that the prosecution involves a questioning of the previous acquittal of the offence of attempted murder. The considerations personal to the appellant referred to above, although significant, are not such whether considered by themselves, or in combination with the first two matters, as to warrant the exceptional step of staying the prosecution as an abuse of process.
Mr Hinton, who appeared for the Director, submitted that an error of House v The King[106] type had to be demonstrated before this Court could interfere with the judge’s conclusion about abuse of process. He referred to the following passage in the judgment of Gaudron and Gummow JJ in R v Carroll:[107]
The power to stay is said to be discretionary. In this context, the word “discretionary” indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration. If so, the appellate court may reach its own decision in substitution for that of the primary judge, where there are before it the materials for so doing.[108]
[106] (1936) 55 CLR 499 at 504-5.
[107] [2002] HCA 55; (2002) 213 CLR 635.
[108] Ibid at [73], 657.
The approach to appellate review of a decision concerning abuse of process contained in this passage was cited, with apparent approval, by Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads and Traffic Authority of New South Wales.[109]
[109] [2006] HCA 27 at [7]; (2006) 80 ALJR 1100 at 1106.
The submissions on appeal in this case differed in a number of respects from the submissions presented to the judge at first instance. The submissions were not directed, at least explicitly, to demonstrating an error of the House v The King kind. In substance, however, they can be understood as submissions to the effect that the judge failed to take into account material considerations. For the reasons given above, I am not satisfied that error of that kind has been shown.
Mr Hinton drew the Court’s attention to s 330 of the CLCA which provides:
No objection to a charge or a conviction can be made on the ground that the defendant might, on the same facts, have been charged with, or convicted of, some other offence.
The Court received some submissions as to the reach of s 330. However, it was not submitted that this provision impacted upon the Court’s jurisdiction to stay a prosecution as an abuse of process. In those circumstances it is not necessary presently to consider the operation of s 330.
Conclusion on Appeal
In my opinion, for the reasons given above, the appeal should be dismissed.
Questions of Law Reserved
I agree with the answers proposed by Gray J to the questions reserved for the consideration of this Court. I agree with his reasons for those answers. There is nothing which I wish to add.

Questions	Answers
1.	Are the prosecution and/or the defence precluded from questioning or calling into question the verdicts in the trial before the Honourable Justice Mullighan, including by the tender of any evidence which, if accepted, would overturn or tend to overturn those verdicts?	Not appropriate to answer.
2.	Are the prosecution and/or the defence precluded from questioning or calling into question any finding of fact by the Honourable Justice Mullighan, including by the tender of any evidence which, if accepted, would overturn or tend to overturn that finding on the basis that it is inconsistent with the verdicts?	Not appropriate to answer.
3.	Further, is the accused constrained in the manner by which he may contest the prosecution case, for the reasons given in (1) and (2).	Not appropriate to answer.
4.	At the trial of the accused for the offence of murder, is evidence establishing the fact of the conviction for wounding with intent to do grievous bodily harm admissible to prove any of the elements of murder, proof of which was required for the conviction for wounding with intent to do grievous bodily harm?	No.
5.	If the answer to (4) is yes, can the fact of that conviction be proved by way of a certificate issued pursuant to s42 of the Evidence Act 1929?	Does not arise having regard to answer 4.